Non-Doctors and the Abortionist’s Dream Act

For months, we have been predicting that the Governor’s abortion expansion proposal would permit non-doctors to perform abortions. That was because the only bill that he would allow us to see was the Reproductive Health Act, which would have allowed any “licensed qualified health care practitioner” to terminate the life of an unborn child.

Now the Governor has finally released his actual bill, and I’ve taken to calling it the Stealth Abortion Expansion Act, because it does all the same terrible things as the former bill, but it does so in such subtle ways that at first blush might seem insignificant, but which take on great meaning once properly understood.

A case in point is the way that the Governor’s bill would permit non-doctors to do surgical abortions, even late-term abortions up until the moment of birth. It’s done by a combination of several key changes to current law they might easily be overlooked by the casual observer:

First, by repealing all of the current Penal Law provisions that permit criminal prosecutions of some abortions, if they are “inconsistent” with the rest of the bill. Those sections of the law right now include a specific requirement that, to be lawful, an abortion must be performed by “a duly licensed physician” (Penal Law section 125.05(3)). The Governor’s bill would erase that requirement from the law — again, to the extent that it is “inconsistent” with other parts of the bill.

Next, the bill is silent about who could do abortions. It doesn’t even have the provision from the old Reproductive Health Act about a “licensed qualified health care practitioner”. The only reference in the bill to a physician is to authorize an abortion at any stage in pregnancy if a doctor deems it necessary for her “health”. But it doesn’t say anything about who would actually do the abortion.

This silence is very significant, when taken together with the following provision in the bill:

“No prosecution or proceeding shall be brought or maintained under the penal law or otherwise for acts that are authorized or permitted pursuant to this section or by this chapter and the education law” (emphasis added)

To understand the incredible breadth of this simple sentence, you have to know that the Health Department, acting under wide authority granted to it by the Education Law, can define the proper “scope of practice” for health professionals. It can also enact wide-ranging regulations that govern surgical and medical activities. Those determinations are not reviewable by courts, and do not have to be ratified by the Legislature. The decision would be made by bureaucrats in Albany, accountable to nobody. They wouldn’t even have to publish regulations for the public to see — they routinely make such decisions by private letter rulings given to interested parties.

As a result, this sweeping provision would give the Health Department the unlimited authority to permit anyone — even non-health professionals — to do abortions. It would immunize any such non-doctor abortionist from any criminal prosecution under the old Penal Law sections (that would be “inconsistent” with this section of the bill) or for practicing medicine without a license, or any kind of civil proceeding (including an action for professional misconduct). That means abortion with impunity for those favored by the Health Department.

It actually gets worse. The bill would permit abortion of any child who is not “viable” for any reason, at any time in the pregnancy. But this key term is completely undefined in the bill — it would be left entirely in the discretion of the abortionist to determine if a child is “viable” or not, with no legal standard to go by and no requirement that any other person (much less a trained doctor) concur with that determination.

Think about that for a second. This bill would allow non-doctors, people with far less training and experience than physicians, to make their own decisions about whether a baby could survive outside the womb, and then to perform surgery to kill that child — even up to the moment of birth.

This is a stunning expansion of abortion. And it is not an accident, given that the bill was written in collaboration with abortionists and their apologists.

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on Thursday, June 6th, 2013 at 10:24 am and is filed under Abortion, Governor, Legislation.
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Ed, I have a question. I’ve looked at the bill and it says that the relevant portions of the penal law are repealed “to the extent that they are inconsistent” with the abortion section proposed in the WEA.

Thus, from an objective (not necessarily a legal) standpoint, I would think what that means is this: when the penal law says an abortion is justifiable to protect a woman’s life, it should now be read as protecting a woman’s health or life. And the portion of the penal law that still requires, e.g., a “duly licensed physician” to perform the abortion is not repealed (since it is not inconsistent with the new legislation).

But I don’t know if that objective reading is the way lawyers would interpret the bill.

So my question is, what do we make of the phrase in the bill “to the extent that they are inconsistent with this section”?

The whole notion of a conditional repeal of a current statute is very strange to me. If you don’t want it any more, you should either repeal it, replace it, or amend it. So it’s a confusing situation.

On its face, the Governor’s bill doesn’t explicitly allow non-doctors to do abortions, and the “inconsistent” clause would seem at first blush to mean that the physician-only provision would remain in place.

I think that we lawyers would read that sentence about repealing the Penal Law sections together with the previous one that references the Education Law, to get a sense of what “inconsistent” means and how far the law reaches.

Under the Education Law, the Health Department can define the “scope of practice” for non-doctors to do an abortion (pre- or post-viability). And under this bill, a person cannot be prosecuted or be the subject of any civil action, if their conduct is “authorized or permitted pursuant to… the Education Law”.

So the criminal penalties under the Penal Law could not be applied to those who are authorized to do abortions by the Health Department pursuant to the Education Law, and to that extent the Penal Law provisions are repealed, because any such prosecution would be “inconsistent” with the rest of the bill.

I just don’t think there’s any other reading under which the reference to the Education Law, together with the conditional repeal of the Penal Law, make any sense.

Good Question….and very helpful answer….especially since we have just days to make sure Cuomo’s proposal doesn’t happen……Come on everyone…get to Albany for the “Stop the Abortion Expansion Act” Advocacy Day.

RESULT:
The people of New york have not been fooled….Governor Cuomo finally unveiled the specifics on the Abortion expansion part of the WEA.
Insulting that Gov Cuomo and abortion industry lobby thought they could pull this over on the people of New York.

The Abortion Expansion part of the Women’s Equality Act (Part J) Expands late-term abortion, allows non-physicians to perform abortions and endangers women and unborn children by removing abortion offenses from the Penal law.

The legislation in it e n t i r e t y is a nightmare. I’m dismayed — not surprised — that the archbishop chose to endorse the job-killing aspects of it.

However, after reading the legislation and understanding how New York government chooses to promote its pro-abortion policies, I cannot see how this disgusting law would lead to one more abortion.

Frankly, if New York’s bishops seriously support pro-life efforts, we’ll hear something — anything — from them about politicians who hold themselves out as practical Catholics , but support abortion, “homosexual rights” and make a general mockery of Christian marriage publicly and in their private lives.

[…] As a result, this sweeping provision would give the Health Department the unlimited authority to permit anyone — even non-health professionals — to do abortions. It would immunize any such non-doctor abortionist from any criminal prosecution under the old Penal Law sections (that would be “inconsistent” with this section of the bill) or for practicing medicine without a license, or any kind of civil proceeding (including an action for professional misconduct). That means abortion with impunity for those favored by the Health Department. (read the rest here). […]